The Department of Agriculture, Food and the Marine has told Inshore Ireland that based on advice from the Attorney General, it would not be possible to deliver on an ‘effective and dissuasive points system consistent with the requirements of the EU Regulation’ by making the assignment of points dependent on the Court prosecution process.

DAFM added it had hoped that subject to addressing some important and administrative issues, ‘Ireland could move towards a system of sequential application of EU points’ in conjunction with the prosecution process’.

The new Statutory Instrument which the Minister intends to sign shortly will amend S.I. No. 125 of 2016 to change the make-up of the Determination Panel. This will involve the appointment of three independent legal professionals nominated by the Attorney General, ‘thereby completely separating the enforcement and the determination functions’.

To the extent possible, the SI ‘will take on board the issues of concern in relation to procedures and processes highlighted in High Court judgments on this matter.’ DAFM confirmed.

EMFF funding implications

Pilot infringement proceedings by the EU Commission for non-implementation of the EU points system have been taken, the statement added.

‘It remained an option for the EU Commission to proceed to formal infringement proceedings in respect of the licence holders system. ‘There are also serious implications with regard to the release of funding under the European Maritime and Fisheries Fund (EMFF).’

Retrograde step

At a recent parliamentary party meeting, Donegal Fianna Fáil deputy, Pat the Cope Gallagher, publically questioned the intention of Michael Creed, Minister for Agriculture, Food and the Marine, to introduce the SI “despite assurances given last year that such a system would not be implemented.

“It now transpires that the Minister is about to give effect to such a system and will not take into account the innocence or otherwise of the fishermen. Such is the bluntness of the proposed legislation.”

Deputy Gallagher added that the SI was being considered regardless of the outcome of a Court case; that the penalty points will still apply.

“This defies logic and is contrary to the principles of common law whereby an individual is innocent until proven guilty and when proven innocent, no penalty or sanction remains on their character. But this is not the case with the proposed penalty points being considered … as it in effect would not be able to remove the penalty points once issued regardless of what a subsequent court would determine.”

Pat the Cope added this is a “step backwards” and is “disgraceful behaviour by those who are currently drafting such regulations especially in the context of last year’s commitments given not to precede which such a course of action.

“The Minister must immediately desist from proceeding with this course of action and honour the commitment given last year. The penalty points system does not work – it’s unfair in its approach and contrary to common law and as such must be scrapped. I would strongly advise the Minister to consult with the sector.”

Deputy Gallagher added he would be raising the matter in the Dáil after the current recess and was confident of the full support of the Fianna Fáil party.

Window dressing changes

Maritime solicitor Dermot Conway described the pending new Statutory Instrument to Inshore Ireland as “astounding” and said Minister Creed and his officials were “well aware” that on October 3 the Supreme Court of Ireland had heard legal submissions as to whether or not penalty points ought to be a stand-alone system or an ‘add on’ to the criminal prosecution before a Court.

“A decision on this is imminent from the Supreme Court,” he said.

“The advice to Minister Creed that he has no choice but to go with a stand-alone system displays an arrogance that can only be attributed to the fact that the people in question do not answer to anyone. They are the permanent government and this is like a scene from ‘Yes Minister’.

“From my perspective, the proposed new SI is as offensive as the first two. The changes being proposed are akin to someone saying the new window installed is not fit-for-purpose, but the Minister decides that he will only change the curtains!

“I have no doubt given the limited information that has issued about the make-up of the new SI, there will be a High Challenge and in my opinion, it will be successful.

“If one reads the first and second statutory instruments, the differences are shades of grey. The new SI purports to be a departure from what went before, but clearly it is simply a darker shade of grey.”